Housego and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 973
•3 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 973
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6195
GENERAL ADMINISTRATIVE DIVISION ) Re ALENA JOYCE HOUSEGO Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date3 November 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance –requirement to undertake Mutual Obligation Activity – refusal to sign work for the dole agreement – Newstart participation failure on three occasions – reasons provided not satisfactory in all the circumstances – decision affirmed
Social Security Act 1991 ss 605, 606, 624, 629
REASONS FOR DECISION
3 November 2008 Senior Member L Hastwell 1. Alena Housego has been a recipient of Newstart Allowance since 2005.
2. On 18 September 2006, she met with her job network member and entered into an activity agreement with the job network provider.
3. A condition of that agreement was that she, amongst other things, attend a mutual obligation interview with UnitingCare Wesley (UCW) by 20 September 2006 and complete her Mutual Obligation activity. This involved her entering into a work for the dole (WFD) activity agreement with UCW.
4. She attended at UCW as arranged by her job network provider on 20 September 2006, but declined to sign the WFD activity agreement.
5. On two subsequent occasions over the next month, she refused to sign the agreement.
6. Centrelink formed the view that she had no reasonable excuse for not signing the agreement and deemed each of these refusals to be a Newstart Allowance participation failure. A penalty was applied after three such failures and she was not paid Newstart Allowance for eight weeks.
7. Ms Housego sought review of this decision. It was affirmed by an Authorised Review Officer. She then sought review of that decision to the Social Security Appeals Tribunal (the SSAT) and on 30 November 2007 the SSAT affirmed the decision under review. She seeks review of the SSAT decision to this Tribunal.
summary of relevant legislation
8. When a person has made a claim for or is receiving Newstart Allowance, they may be required to enter into a Newstart activity agreement. This is provided for in s 605 of the Social Security Act 1991 (the Act).
9. Section 606 of the Act discusses the requirements which may be included in a Newstart activity agreement and s 606(1) provides that a Newstart activity agreement can require a person to undertake one or more activities that the Secretary regards as suitable for the person.
10. Section 624 of the Act deals with what are referred to as Newstart Allowance participation failures and provides as follows:
“624 Newstart participation failures
(1) A person commits a newstart participation failure if the person:
(a) fails to comply with a requirement:
(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or
(b) fails to satisfy the activity test; or
(c)fails to comply with a requirement to enter into a Newstart Activity Agreement; or
(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or
(e) fails to attend a job interview; or
(f) fails:
(i)to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or
(ii) to comply with the conditions of such a program; or
(g)fails to continue his or her involvement in a labour market program because he or she:
(i) voluntarily ceases to take part in the program; or
(ii) is dismissed from the program for misconduct; or
(h)is issued with a notice under subsection 625(1) and fails to comply with it within the period specified in the notice; or
(i) fails to comply with subsection 625(2); or
(j)fails to comply with a requirement included in a Newstart Activity Agreement between the Secretary and the person to:
(i)undertake a certain number of job searches per fortnight; and
(ii)keep a record of the person’s job searches in a document referred to in the agreement as a job seeker diary; and
(iii)return the job seeker diary to the Department at the end of the period specified in the agreement; or
(k)fails to comply with a requirement to undertake another activity referred to in paragraph 626(1)(b).
(2)Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.
(2A)The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a newstart participation failure.
(2B)To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).
…”
material considered by the tribunal in reaching its decision
11. Ms Housego gave evidence to the Tribunal. Consequent to the hearing, she provided a further written submission to the Tribunal. In addition, some further documents were received from Centrelink after the conclusion of the hearing which contained a screen dump providing various contact between Centrelink and Ms Housego from 2003 to 2007.
did ms housego commit any newstart participation failures?
12. A number of facts are not in dispute, and the Tribunal sets them out as follows.
13. On 18 September 2006, Ms Housego signed an activity agreement with SYC Job Prospects in which she agreed to “Attend Mutual Obligation interview with UnitingCare Wesley by 20/09/06 and complete my Mutual Obligation Activity”.
14. The proposed mutual obligation activity was to undertake a WFD activity agreement which was to be arranged by UCW.
15. On 20 September 2006, Ms Housego attended at UCW, but declined to sign the WFD activity agreement that was presented to her.
16. On 29 September 2006, a Centrelink officer spoke with Ms Housego as to her reasons for not signing the agreement and then sent her a letter advising her of the first Newstart participation failure.
17. An appointment was made for her to return to UCW on 9 October 2006 for a further interview.
18. On 9 October 2006, she attended that appointment at UCW and again declined to enter into a WFD activity agreement.
19. On 16 October 2006, a Centrelink officer again contacted Ms Housego as to her reasons for not signing the agreement. On the same day she was sent a letter stating that Centrelink did not consider that she had a reasonable excuse for her actions and she had committed a participation failure. A further appointment was made for her to attend at UCW on 20 October 2006.
20. On 20 October 2006, Ms Housego attended once more at UCW and again she declined to sign a WFD activity agreement.
21. On 27 October 2006, a Centrelink officer spoke with her regarding the participation failure on 20 October 2006. On 13 November 2006 she was sent a letter stating that she did not enter into the WFD activity agreement when asked to do so on 20 October 2006 and as Centrelink considered that she did not have a reasonable excuse, there had been a third participation failure and a penalty was to be imposed.
ms housego’s explanation for failing to sign the wfd activity agreement on the relevant dates
22. Ms Housego provided the Tribunal with a copy of her curriculum vitae (Exhibit A1). She told the Tribunal that she was disillusioned with the system of job network providers and that she met with Centrelink under protest on 18 September 2006 because she felt that they had done little to assist her with finding employment during the period that she was in receipt of Centrelink benefits.
23. With respect to the first meeting at UCW, Ms Housego told the Tribunal that she was shocked that she would have to work for 20 hours for the particular organisation. She said that she was aware that other people on Newstart Allowance were required to do less and she objected to this because she thought that given her prior work experience and her level of aptitude, it was not an appropriate request.
24. Her evidence was that the work that she was being asked to do was reception work. She also mentioned to the Tribunal that she had a lack of confidence in the church, which in some way was also relevant to her refusal to sign on that occasion. In her subsequent written submission to the Tribunal, she again alluded to having a “… conflict of interest in participating in these [sic] program on not only political, but moral, cultural and religious grounds”.
25. With respect to the second occasion, she did not have a good recall of what occurred. She said that on the second occasion she requested to view the premises where she would be working first before signing a contract as she was concerned about working in a safe environment. She admits that she did not sign the agreement and left the premises. Her subsequent submission said that she felt she would be “harmed by engaging in any such activity”.
26. She told the Tribunal that on the third occasion, on 20 October 2006, she was under stress as she had applied for the NEIS Scheme and the Department had assessed her as having a “zero job capacity”. She felt that someone was making a scapegoat of her and she needed to clarify that assessment. She wondered if some sort of conspiracy was going on. She agreed that she refused to sign the agreement on that third occasion.
27. Centrelink records, and in particular the records contained in the T documents at T6/33-41, deal with each of the incidents when she declined to sign the documents.
28. The record of the conversation with the Centrelink officer on the first occasion (T6/33) states that on 21 September 2006, Ms Housego refused to do WFD as she felt that it was a scam that she should be required to work for less than the minimum wage and would not receive superannuation. She indicated that she had “issues” with complying with WFD. The record notes that she was hostile on that occasion.
29. On the second occasion, on 10 October 2006 (T6/36), when asked to explain her failure to sign the agreement, the record states that Ms Housego did not want to sign the WFD activity agreement due to not knowing her placement. She insisted she wanted to see the provider first. The provider had indicated that she must agree to sign the agreement before she could be sent to inspect the placement. She left without signing the agreement.
30. The record of the third occasion, on 20 October 2006 (T6/39), states that she told the Centrelink officer that she was running her own business and that she would not do WFD as she was not paid superannuation and that this was her right as an Australian.
31. Copies of the relevant notifications to Ms Housego with respect to each of the three participation failures are contained in the T documents at T7/42-50.
consideration of the evidence
32. Ms Housego had a negative opinion about the WFD scheme and the underlying Government policy and she considered that Government had not done enough to assist her to obtain employment appropriate to her skill level. She considers herself too skilled to be doing the sort of work that she was being asked to do, even though she has been unemployed for some time.
33. She expressed some odd views about the church and about being made a scapegoat by the Department. Her subsequent submission to the Tribunal again referred to her political and moral views, and her belief that she has been wrongly assessed by Centrelink who have not paid sufficient attention to her skill base. She considers that she had reasonable grounds for not participating in the mutual obligation activity and for not signing the agreement on each of the three occasions.
34. She did not dispute the records of each interview as presented in the T documents.
35. She made passing reference to some dental problems, but did not present that as any reason for her failure to sign the agreements and participate in the program. These problems were elaborated on in her subsequent written submission. They did not directly impact on the three occasions in question, but were raised by her as being caused by stress.
36. The Tribunal notes that some other reasons were given by Ms Housego to the SSAT for not signing the agreements. For instance, she told the SSAT that on one occasion her refusal to sign was because the interviewer would not allow her to take a copy home to read. She also raised issues about education credits in her evidence before the SSAT.
application of the law
37. If satisfied that the mutual activity obligation imposed upon Ms Housego in her activity agreement was reasonable, then she must show a reasonable excuse for her failure to participate in the agreement to avoid the finding of a Newstart participation failure.
38. As Ms Housego was a recipient of Newstart Allowance at the relevant time she is required to satisfy the activity test.
39. Section 601 of the Act elaborates on the activity test and provides that for a person to satisfy the activity test in respect of a period they must be actively seeking and willing to undertake paid work in Australia throughout the relevant period.
40. The Secretary may require a person to into a Newstart activity agreement and this is provided for in s 605 of the Act. Section 606 of the Act deals with the terms that can be contained in such an agreement. A recipient of Newstart Allowance can be asked to undertake activities that the Secretary regards as being suitable for that person.
41. The requirement that Ms Housego attend at UCW and enter into a mutual obligation activity was reasonable, allowed for by the Act and in line with Government policy at the time.
42. UCW is a well known organisation that provides services to many sectors of the community, including the underprivileged.
43. Although it is not clear what the actual activity was going to be at UCW, it appears likely that it was reception style work. This was the evidence given by Ms Housego and there is nothing to indicate that there were medical reasons why she could not undertake such an activity.
44. Ms Housego has been unemployed for some time. She has computing skills, some TAFE qualifications and a Diploma from TAFE. Despite these qualifications, her curriculum vitae suggests that she has not had employment in the external work force for some time. The sort of work that was being proposed appears to have been work with a well known large organisation that would have involved Ms Housego having some interaction with the public. It was reasonable to ask her to do this work as part of her Mutual Obligation activity.
45. The documentary evidence on the file is straightforward. The Tribunal has no reason to believe that details of the interviews with Ms Housego have not been correctly recorded
46. The Tribunal has carefully considered the various reasons given by Ms Housego for failing to sign the mutual activity agreement and for failing to participate in a mutual obligation activity on each occasion and throughout the relevant period.
47. It appears that her objections were numerous, partially political, moral and cultural on at least one occasion, because she considered that she was self-employed. None of the explanations given at the time of the interviews to the SSAT, or to this Tribunal, appear reasonable. Some of the explanations given do not appear to be rational. Her written submission also referred to numerous side issues that appeared to have no link with the three particular occasions in question.
48. In the circumstances, the Tribunal is satisfied that Ms Housego did attend all three appointments and that her reasons for refusing to enter into WFD activity agreements are not reasonable.
49. The Tribunal agrees with the SSAT that she did not provide a reasonable explanation for her failure to enter into a WFD activity agreement on all three occasions and in the circumstances there has been a breach three times.
50. The Tribunal is therefore satisfied that she did not ever sign a WFD activity agreement and that for the purposes of s 624(1)(c) and s 624(1)(d), she has failed to comply with the requirement to enter into a Newstart activity agreement and has failed to comply with the term of the agreement signed on 18 September 2006.
51. Section 629(1) of the Act provides for the imposition of an eight week non-payment period where a person commits a participation failure and has committed earlier failures on two or more occasions during the period of 12 months preceding the latest failure. It provides as follows:
“629 Allowance not payable because of repeated or more serious failure
(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
(a)commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or
…”
52. In all the circumstances, the Tribunal is satisfied that Ms Housego committed three Newstart participation failures within a period of 12 months and that it was correct to impose an eight week non-payment period to her Newstart Allowance payments under s 629(1) of the Act. The Tribunal notes that she has already served the non-payment period.
53. In the circumstances, the Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............J Coulthard..........................................
AssociateDate\\/s of Hearing 3 July 2008
Date of Decision 3 November 2008
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms J Kitto
Centrelink Legal Services Branch
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